International law offers protection to the oppressed. In Are Women
Human?, feminist legal scholar Catharine A. MacKinnon exposes the
hypocrisy of not extending the same protection to women.

July 13, 2006

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Inequality on the basis of sex is a pervasive reality of women’s lives all over the world. So is sex-related violence. Rape by strangers and acquaintances, rape within marriage, domestic violence, trafficking into sex work, the abuse of women and girls in the pornography industry: In all these ways, argues Catharine MacKinnon, women suffer aggression and exploitation, “because we are women, systemically and systematically.” Although violence against women is certain to be underreported and undercounted, data still show a tremendous amount of it everywhere. (Cross-cultural studies cited by MacKinnon show that rates of violent domestic abuse are similar in the United States, Japan and India.) As a 1989 United Nations report summarizes, “The risk of violence and violation within the household is one thing women, irrespective of their social position, creed, colour or culture, share in common.” So, too, is vulnerability to rape in wartime–the well-documented mass rapes of Bosnian women being just one recent example of an appalling reality that has characterized most armed conflicts.

Despite the prevalence of these crimes, they have not been well addressed under international human rights law–if, indeed, they have been addressed at all. Typically, there has been what MacKinnon calls a “double-edged denial”: The abuse is considered either too extraordinary to be believed or too ordinary to constitute a major human rights violation. Or, as MacKinnon says, “If it’s happening, it’s not so bad, and if it’s really bad, it isn’t happening.” Until recently, abuses like rape and sexual torture lacked good human rights standards because human rights norms were typically devised by men thinking about men’s lives. In other words, “If men don’t need it, women don’t get it.” What this lack of recognition has meant is that women have not yet become fully human in the legal and political sense, bearers of equal, enforceable human rights.

In recent years there has been progress. International agreements, above all the 1979 Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), have given salience to sex-specific abuses such as domestic violence and sexual harassment. Creative use of existing laws has made it possible, in some instances, for women to win against their abusers in cases that cross national boundary lines. Meanwhile, women organizing through the informal social networks of nongovernmental organizations and the international women’s movement have pressured states and the international community to act on issues like trafficking and rape in war. Indeed, as MacKinnon notes, “Women’s resistance to their status and treatment” is now “the cutting edge of change in international human rights.”

MacKinnon herself has played a moving role in these developments. Because she is so well known as a feminist thinker, it is easy to forget that MacKinnon is also a lawyer, and a very shrewd one. Representing a group of women who had been raped during the Bosnian conflict, in a case called Kadic v. Karadzic, she employed a little-known American law, the Alien Tort Claims Act, which allows plaintiffs to file civil suits against foreign citizens in US courts, provided that the defendant can be served on US soil. Previous users of the statute had been isolated individuals. While rejecting a class-action approach on the grounds that it would impose plaintiff status on women who might be unwilling to join in–the process, she argues, must be “accountable, personal, and responsive”–MacKinnon brought suit against Bosnian Serb leader Radovan Karadzic on behalf of a specific group of female clients, seeking damages for injuries consisting in “genocidal sexual atrocities perpetrated as a result of [his] policy of ethnic cleansing.” Damages were sought for the named individuals, as was an injunction that Karadzic order the genocide to stop. On August 10, 2000, a jury in the State of New York awarded the plaintiffs a total of $745 million in compensatory and punitive damages and a permanent injunction. For her role in this landmark prosecution, MacKinnon was honored as one of the finalists in the 2001 “trial lawyer of the year” competition by the Trial Lawyers for Public Justice.

Now MacKinnon has gathered the speeches and articles that she has delivered over the past twenty years on sex equality and international law. The result is a sparkling book, perhaps her finest. Unsettling in the best sort of way, Are Women Human? shows her to be not only a prodigiously creative feminist thinker who can see the world from a fresh angle like nobody else (and I mean the angle of reality, as opposed to the usual one of half-reality) but also one of our most creative thinkers about international law. As elsewhere in MacKinnon’s work, we find plenty of trenchant and eloquent writing; but we also find more systematic analysis and more extensive scholarship than we sometimes get, and the book is the richer for it.

MacKinnon’s central theme, repeatedly and convincingly mined, is the hypocrisy of the international system when it faces up to some crimes against humanity but fails to confront similar harms when they happen to women, often on a daily basis. There is a category of torture, and we think we know how to define it. We think we know what it does: It uses violence to control and intimidate. And yet when violence is used to control and intimidate women “in homes in Nebraska…rather than prison cells in Chile,” we don’t call it torture, and we somehow think it is not the same thing. Torture in Chile is not explained away as the work of isolated sick individuals. We know it is political, and we can see how systemic it often is. When violence happens to women in Nebraska, we say, Oh well, that was only some sicko, and men really aren’t like that. Well, given the numbers, shouldn’t we ask more questions about that?

Again, we have a concept of war, and we think we know what war is: People get maimed and killed fighting over land and power. And yet when women get raped and beaten up by men who want to control them, we pay little heed. “It is hard to avoid the impression that what is called war is what men make against each other, and what they do to women is called everyday life.”

As in her prior work, MacKinnon is caustic about the damage done by the traditional liberal distinction between a “public sphere” and a “private sphere,” a distinction that insulates marital rape and domestic violence from public view and makes people think it isn’t political. “Why isn’t this political?… The fact that you may know your assailant does not mean that your membership in a group chosen for violation is irrelevant to your abuse. It is still systematic and group-based. It…is defined by the distribution of power in society.”

In the two most deeply troubling articles in the collection, “Genocide’s Sexuality” and “Women’s September 11th,” MacKinnon examines the internationally accepted definitions of genocide and terrorism, and argues that many acts of men against women meet one or both of these definitions. As defined under the UN convention on genocide, genocide is either killing or inflicting serious bodily or mental harm on members of a group, with intent to destroy that group either entirely or in part. The groups mentioned are “national, ethnical, racial, or religious” groups: So in that sense violence against women clearly doesn’t qualify. On other grounds, however, one could argue that a great part of violence against women does involve a similar infliction of “serious harm” on women because they are women, and its aim can be said to be to destroy “in part”–for “destroy,” if mental harm is sufficient for genocide, must mean not “kill” but “remove from the ranks of the fully human”–something that happens to women all the time.

Examining a wide range of cases in which rape occurs in the context of a recognized genocide (including both the Holocaust and the Bosnian conflict), MacKinnon argues that these rapes are not sui generis. Similar violations take place all the time. “In this light, what rape does in genocide is what it does the rest of the time: ruins identity, marks who you are as less, as damaged, hence devastates community, the glue of group.” It’s convenient not to notice a genocide this dispersed, this multinational, this perpetual. MacKinnon summons the international community to notice, and to grapple with the question of how to dignify violence against women as an atrocity worthy of the name. “If women were seen to be a group, capable of destruction as such, the term genocide would be apt for violence against women as well. But that is a big if.”

Terrorism, she believes, is another concept that needs to be recast with women’s lives in view. In confronting the reality of terrorism after 9/11, the international community had to find ways to conceptualize and condemn a new sort of organized violence that didn’t fit previous definitions of war. It did so–but, again, it didn’t notice the implications of the new concepts for the lives of women. Terrorism is unlike war in that the perpetrators are non-state actors who are not combatants in a formally declared conflict. “Common elements include premeditation rather than spontaneity, ideological and political rather than criminal motive, civilian targets (sometimes termed ‘innocents’), and subnational group agents. What about violence against women fails to qualify?” A lot of this violence, including gang rapes and much stalking and sexual harassment, and most trafficking, is planned. Its victims are “innocents”–aren’t they? And surely the status of women in relation to men is “political”–isn’t it? And once again, the motives of men are not just those of the isolated criminal “sicko”; they are often quite fully ideological, expressing a view that women are there for men’s use and control. What the precise consequences of the recognition of these similarities should be for law are not exhaustively developed. But one thing is very clear: States that make a big deal of saying that they will do this or that to states that “harbor terrorists” and yet fail to have the slightest interest in states that don’t enforce laws forbidding violence against women are hypocritical. MacKinnon’s aim is to expose this hypocrisy and get people involved in seeking creative legal remedies, acknowledging, as they do so, that women are full-fledged human beings deserving of the dignity of legal protections: “When will women be human? When?”

Throughout the book MacKinnon reasserts the conception of equality that has been, so far, her most influential contribution to legal thought. Similarity of treatment, she has argued throughout her work, is not sufficient for the true “equal protection” of the laws. Mere formal equality often masks, or even reinforces, underlying inequalities. We need to think, instead, of the idea of freedom from hierarchy, from domination and subordination. This insight had been influential in the law of race prior to MacKinnon’s work. Thus, laws against miscegenation were defended on the ground that they treated blacks and whites similarly: Blacks can’t marry whites, and whites can’t marry blacks. The Supreme Court, however, invalidated those laws under the equal protection clause of the Fourteenth Amendment, saying that they upheld a regime of “White Supremacy.” MacKinnon makes a parallel move in the area of sex: To deny women benefits that they need in order to function as equals (medical pregnancy benefits, for example) is to violate equal protection, even when the treatment of men and women is similar (no men get pregnancy benefits, and no women get them either). This insight has shaped legal thinking about sex equality, sexual harassment and the nature of the equal protection clause. It is widely agreed, for example, that MacKinnon’s Sexual Harassment of Working Women is one of the most influential books by a legal academic, in terms of its actual influence on the law. The present book helpfully explains her equality theory again and shows how it operates in a range of international contexts.

While advancing ambitious theoretical arguments, Are Women Human? also shows MacKinnon’s wide range as a comparative legal scholar, as she discusses tensions between Canada’s Charter, which guarantees substantive sex equality, and the Meech Lake Accord, a failed set of amendments that offered protections for regional group rights; as she addresses an audience in India about related tensions between India’s religious systems of “personal law” and its constitutional guarantee of sex equality; as she investigates the role played by rape and forced prostitution in the Holocaust; and as she reflects on the role that rape played in the genocide in Bosnia, drawing upon her clients’ wrenching narratives of violation. The book also contains valuable insights at the meta level, particularly on feminist theory and its relationship to political reality. In “Theory Is Not a Luxury,” MacKinnon addresses critics who doubt that “theory” provides anything useful for marginalized people. Some are uncomprehending men, for whom calling something “only a theory” is a way of devaluing it in contrast to (their view of) “reality.” Some are women, who see theory as a male tool and would urge feminists to eschew it. Feminism needs theory, argues MacKinnon, because theory shows the world in a new way, using method to make it “accessible to understanding and change.” Theory is not an enemy but a necessary ally of the “reality of women’s lives,” because that reality is frequently invisible until theory brings its salient features into prominence.

Unlike some types of theory, feminist theory, she argues, is bottom-up: It starts from the silenced reality of women’s lives. Its “development as theory is impelled by the realities of women’s situation.” Its goal is to make that situation more visible, more comprehensible–not as a mere ideological construct but as what was, and is, happening. “As it turned out, once rescued from flagrant invisibility, women’s realities could often be documented in other ways, and nearly anyone proved able to understand them with a little sympathetic application…. What we said was credible because it was real.”

Because feminist theory, in her understanding, is committed to reality, MacKinnon is deeply troubled by some of the excesses of academic postmodernism. One of the gems in the collection is an essay called “Postmodernism and Human Rights,” which ought to be required reading for all undergraduates and graduate students in the humanities. Here MacKinnon makes points that have also been made by other left-wing critics of postmodernism, notably Noam Chomsky and Tanika Sarkar, but she makes them with a devastating wit that is all her own. To say that gender is a social construct, she argues, is hardly to say that it is not there. “It means that it is there, in society, where we live.” To say that feminists wrongly “essentialize” by ascribing common properties to women is to raise

an empirical rather than a conceptual question. Do characteristics exist that can be…found in the reality of…the status of women across time and place…? Women report the existence of such regularities: sex inequality, for one. It is either there or it is not…. Once it has been found to exist, to say it isn’t there, show it isn’t there–show, for example, that female genital mutilation is a collective delusion or harmless or a practice of equality…. What the postmodernists seem to be saying here is that they don’t like the idea that women are unequal everywhere. Well, we don’t like it either.

As for postmodernism’s critique of universality and binary oppositions, she has this to say:

The postmodern attack on universality also proves a bit too much. Inconveniently, the fact of death is a universal–approaching 100 percent…. Much to the embarrassment of the antiessentialists, who prefer flights of fancy to gritty realities, life and death is even basically a binary distinction–and not a very nuanced one either, especially from the dead side of the line, at least when seen from the standpoint of the living, that is, as far as we know. And it is even biological at some point. So the idea that there is nothing essential, in the sense that there are no human universals, is dogma. Ask most anyone who is going to be shot at dawn.

MacKinnon’s attack has no particular target or targets, although there are footnote references to several specific postmodern feminists. Instead, she issues a cheerful invitation: “Far from attempting to tar them all with this brush, I invite anyone to disidentify with what I describe and to stop doing it any time.”

Are Women Human? is a major contribution both to feminism and to international law. About some of MacKinnon’s specific claims, however, I have doubts. I wonder, for example, whether her expressed preference for civil over criminal law as a vehicle for pressing sex-equality claims is not unduly influenced by the particular success of her strategy in Kadic v. Karadzic. She is certainly right that criminal laws are frequently underenforced, and that when criminal prosecution is impossible, a civil suit may be a victim’s only way of attaining justice. But that doesn’t show that civil remedies ought in general to be “favored”; and surely women’s lives will not improve much unless and until the criminal law in the place where they live has become both adequate in its content (defining rape appropriately, recognizing that it can take place in marriage, etc.) and adequately enforced.

I have a more serious worry about MacKinnon’s expressed preference for the international realm, in contrast to the state realm, as a place where women should focus their energies. It is certainly true that the abuses suffered by women are depressingly similar from one nation to another, and that the international women’s movement has therefore been able to identify similar problems in many nations and to jump-start the search for creative solutions. It is also true that when states are doing nothing, women can goad them into action by making a big noise internationally, and that this has happened, often helpfully. Finally, it is true that some specific problems require international solutions. Trafficking, for example, as MacKinnon points out, will not stop without international sanctions, because otherwise the traffickers will just keep moving on from states that have adopted strong laws to states that have weaker laws or that don’t enforce the ones they have. Much the same is true of labor accords, as she mentions: Here, too, a solution has to be transnational because piecemeal solutions just make the problem move elsewhere.

None of this, however, adds up to saying that the state is not a crucially important place for sex equality to be enacted and realized. MacKinnon sometimes comes quite close to saying that the modern state is a sexist relic that has had its day. Surely, however, the state is the largest unit we know of so far that is decently accountable to people’s voices, and thus it is bound to be of critical importance for women seeking to make their voices heard. I think there is also a moral argument for the state: It is a unit that expresses the human choice to live together under laws of one’s own choosing. Once again, it is the largest unit we yet know that expresses this fundamental human aspiration. A world state, should it exist, would either be too dictatorial, imposing on Indians and South Africans and Canadians alike a Constitution that each group might like to determine and fine-tune separately, or else it would be little more than a charade, as some international agreements are today.

MacKinnon is a lawyer, and her imagination has always been galvanized by the experiences of women in specific legal situations, whether they are her formal clients or not: the plaintiffs in the landmark sexual harassment cases, the victims of abuse in the pornography industry whose testimony is gathered in her book In Harm’s Way, the Bosnian women she recently represented. I think that this powerful empathy explains why she is impatient with the slow work of Constitution-making and Constitution-changing that is required for sex equality at the state level, and drawn to the more personal and informal encounters among women in the international women’s movement. If the state has in many ways been deaf to women’s voices, however, why should she believe that–without changing the nature of each liberal state, one by one–women can get good results at the international level? Surely the two levels need to work in tandem, informing each other. And both need to be informed by grassroots work at the most local level, as India’s democracy has been powerfully influenced recently by the insights and achievements of women who now, by constitutional amendment, hold one-third of the seats in the panchayats, or local village councils.

MacKinnon is clearly correct, however, that change will not take place through state-based laws and institutions alone, and that all levels of civil society must be enlisted to play their part. “Opposing violence against women teaches,” she concludes, “that peace-building is an active social process, not a mere lack of overt fighting, far less a document-signing ritual of contract or an arm-twisting exercise to get the parties in bed together in the silence of power having prevailed.” By casting herself as a peace-builder, MacKinnon issues a pointed challenge to her adversaries, who boringly stereotype her as a fierce amazon on the warpath against male liberties. This book is indeed fierce, unrelenting in its naming of abuse and hypocrisy. In a world where women pervasively suffer violence, however, it takes the fierceness of good theory to move us a little closer to peace.

Martha C. NussbaumMartha C. Nussbaum, the Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago Law School, is the author, most recently, of Creating Capabilities: The Human Development Approach.